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2012-08-13 TvS - ORDER Denying Motion to Recuse and Change of Venue

2012-08-13 TvS - ORDER Denying Motion to Recuse and Change of Venue

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Published by Jack Ryan
(IN CHAMBERS) ORDER DENYING PLAINTIFF’S MOTION FOR JUDGE
GEE TO RECUSE HERSELF AND HAVE THE CASE REASSIGNED TO A
JUDGE, WHO WAS NOT APPOINTED BY BARACK OBAMA AND WHO IS
LOCATED IN THE SOUTHERN DIVISION OF THE CENTRAL DISTRICT OF
CA (Dkt. 6)
(IN CHAMBERS) ORDER DENYING PLAINTIFF’S MOTION FOR JUDGE
GEE TO RECUSE HERSELF AND HAVE THE CASE REASSIGNED TO A
JUDGE, WHO WAS NOT APPOINTED BY BARACK OBAMA AND WHO IS
LOCATED IN THE SOUTHERN DIVISION OF THE CENTRAL DISTRICT OF
CA (Dkt. 6)

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Published by: Jack Ryan on Aug 13, 2012
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11/06/2012

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UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIACIVIL MINUTES – GENERAL
Case No. SA CV12-01092 DMG (JCx) Date August 13, 2012Title Orly Taitz v. Kathleen Sebelius, et al.
CV-90 (10/08)
CIVIL MINUTES - GENERAL
Page 1 of 4
Present: The Honorable JOHN A. KRONSTADT, UNITED STATES DISTRICT JUDGEAndrea Keifer Not ReportedDeputy ClerkCourt Reporter / RecorderAttorneys Present for Plaintiffs: Attorneys Present for Defendants:Not Present Not Present
Proceedings:(IN CHAMBERS) ORDER DENYING PLAINTIFF’S MOTION FOR JUDGEGEE TO RECUSE HERSELF AND HAVE THE CASE REASSIGNED TO AJUDGE, WHO WAS NOT APPOINTED BY BARACK OBAMA AND WHO ISLOCATED IN THE SOUTHERN DIVISION OF THE CENTRAL DISTRICT OFCA (Dkt. 6)
 
I. Introduction
On July 13, 2012, Plaintiff, Dr. Orly Taitz (“Taitz”), who is self-represented and an attorney, fileda “Motion for Judge Gee to Recuse Herself and Have the Case Reassigned to a Judge, Who Was NotAppointed by [President] Barack Obama and Who Is Located in the Southern Division of the CentralDistrict of C[alifornia]” (the “Motion”). Dkt. 6. In the Motion, Taitz contends that, because: (i) Judge Geewas appointed by President Obama; and (ii) the action seeks to raise challenges to,
inter alia,
PresidentObama’s eligibility to be President, Judge Gee should be disqualified from presiding over this matterpursuant to 28 U.S.C. §§ 455(a), 455(b)(1) and 455(b)(5)(iii). Mot., p.3, Dkt. 6. The Motion also objectsto the assignment of the case to Judge Gee, who sits in the Western Division of the Central District ofCalifornia, because Taitz filed it in the Southern Division of this District, which is closer to her office.The Motion was referred to this Court for decision pursuant to General Order 08-05, ¶ 4.0 (“If amotion is made to disqualify a judge in any civil case, the motion shall be referred to the Clerk forrandom assignment to another judge.”). For the reasons stated in this Order, the Motion is DENIED.
II. The Complaint
In her Complaint, Dkt. 1, Taitz seeks to advance several claims against 10 Defendants,including: President Obama; Secretary of Health and Human Services Kathleen Sebelius;Representative Nancy Pelosi; Social Security Commissioner Michael Astrue; Attorney General EricHolder; former Selective Service Director William Chatfield; Hawaii Health Department Registrar AlvinOnaka; and certain persons identified as officials of the Democratic Party. The Complaint, which lacksclarity and precision, appears to advance putative class action claims to the effect that,
inter alia,
thePatient Protection and Affordable Care Act (the “Act”), Pub. L. No. 111-148, 124 Stat. 119 (2010),
Case 8:12-cv-01092-DMG-JC Document 20 Filed 08/13/12 Page 1 of 4 Page ID #:227
 
 
UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIACIVIL MINUTES – GENERAL
Case No. SA CV12-01092 DMG (JCx) Date August 13, 2012Title Orly Taitz v. Kathleen Sebelius, et al.
CV-90 (10/08)
CIVIL MINUTES - GENERAL
Page 2 of 4
violates the Free Exercise and Establishment Clauses of the First Amendment, and the Due ProcessClauses of the Fifth and Fourteenth Amendments. The Complaint also refers to Article II, Section 1 ofthe Constitution, and apparently seeks to contest the Act based on the claim that President Obama isnot “a lawful US [sic] President.” Compl. ¶ 17. The Complaint also contains summary references to theRacketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961
et seq.,
and containscertain summary allegations that mention alleged fraud and mail fraud by certain Defendants; theseallegations may be seen as related to those with respect to President Obama’s qualifications to serveas President.
III. Governing Legal Standards
As noted, Taitz brings this motion pursuant to to 28 U.S.C. §§ 455(a), 455(b)(1) and455(b)(5)(iii). The referenced provisions of § 455 provide:(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself inany proceeding in which his impartiality might reasonably be questioned.(b) He shall also disqualify himself in the following circumstances:(1) Where he has a personal bias or prejudice concerning a party, or personalknowledge of disputed evidentiary facts concerning the proceeding;. . .(5) He or his spouse, or a person within the third degree of relationship to either ofthem, or the spouse of such a person:. . .(iii) Is known by the judge to have an interest that could be substantially affectedby the outcome of the proceeding . . . .A recusal motion under § 455 is committed to the discretion of the district court.
See 
 
Preston v.United States 
, 923 F.2d 731, 733 (9th Cir. 1991). The standard for recusal under § 455(a) is, “whethera reasonable person with knowledge of all the facts would conclude that the judge's impartiality mightreasonably be questioned.”
United States v. Studley 
, 783 F.2d 934, 939 (9th Cir. 1986). Thus,[b]ecause 28 U.S.C. § 455(a) focuses on the appearance of impartiality, as opposed tothe existence in fact of any bias or prejudice, a judge faced with a potential ground fordisqualification ought to consider how his participation in a given case looks to theaverage person on the street. Use of the word “might” in the statute was intended toindicate that disqualification should follow if the reasonable man, were he to know all thecircumstances, would harbor doubts about the judge's impartiality.
Potashnick v. Port City Constr. Co.
, 609 F.2d 1101 (5th Cir. 1980);
Hamid v. Price Waterhouse 
, 51 F.3d1411, 1416 (9th Cir. 1995) (the test is “whether a reasonable person with knowledge of all the factswould conclude that the judge's impartiality might reasonably be questioned”).The standard for recusal under § 455(b)(1) requires a showing that the alleged bias or prejudicebe “personal,” as opposed to “judicial.”
See 
 
King v. U.S. Dist. Court for Cent. Dist. of Cal.
, 16 F.3d 992,
Case 8:12-cv-01092-DMG-JC Document 20 Filed 08/13/12 Page 2 of 4 Page ID #:228
 
 
UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIACIVIL MINUTES – GENERAL
Case No. SA CV12-01092 DMG (JCx) Date August 13, 2012Title Orly Taitz v. Kathleen Sebelius, et al.
CV-90 (10/08)
CIVIL MINUTES - GENERAL
Page 3 of 4
993 (9th Cir. 1994). A personal bias has been defined as “an attitude toward petitioner that issignificantly different from and more particularized than the normal, general feelings of society at large.”
Mims v. Shapp 
, 541 F.2d 415, 417 (3d Cir. 1976). The words “bias or prejudice” have been describedas those that “connote a favorable or unfavorable disposition or opinion that is somehow
wrongful 
or
inappropriate 
.”
Liteky v. United States 
, 510 U.S. 540, 550 (1994) (italics in original). The opinion can bewrongful or inappropriate either because it is undeserved, or because it rests upon knowledge that thesubject ought not to possess, or because it is excessive in degree.
Id.
1
 The standard for recusal under § 455(b)(5)(iii) follows the same approach described withrespect to § 455(b)(1):courts appear to weigh two factors in deciding whether to recuse under this provision:the remoteness of the interest and its extent or degree. Thus if a judge is a stockholderin a company, and a decision in a case against another company in the same industrywill have a substantial effect on all companies in the industry, the judge should recuse. Ifa judge, or a corporation in which the judge owns stock, has a business relation with aparty to a case, disqualification will turn on whether that business relation will be affectedby the case. Similar questions will arise if a judge is a ratepayer to a party to aproceeding.13D W
RIGHT
&
 
M
ILLER
,
 
F
EDERAL
P
RACTICE AND
P
ROCEDURE
§ 3547 (3d ed.) (footnotes omitted).
IV. AnalysisA. Plaintiff’s Claim of Bias Is Without Merit
Taitz has failed to show a basis for recusal under any of the foregoing standards. The Motiondepends on a single theory for disqualification: That because Judge Gee was nominated and appointedby President Obama, she is disqualified to consider the issues in this case because they relate to hisPresidency and could in some manner bring into question the validity of her appointment as a district judge. Taitz cites no authority in support of these positions and the Court has found none. Every federaldistrict judge holds office for a term of good behavior. U.S.
 
C
ONST
. art. III, § 1. This provision isdesigned to ensure an independent judiciary.
United States v. Hatter 
, 532 U.S. 557, 567-68 (2001); T
HE
F
EDERALIST
N
O
. 78 (Alexander Hamilton). Since the establishment of the doctrine of judicial review in
Marbury v. Madison 
, 5 U.S. (1 Cranch) 137 (1803), members of the federal judiciary have presided overmany cases in which an issue presented has been whether an action of the Legislative or ExecutiveBranch violated the Constitution.
E.g.
,
Youngstown Sheet & Tube Co. v. Sawyer 
(
Steel Seizure 
)
,
343
1
In
Liteky 
, the Supreme Court equated the bias or prejudice tests of 28 U.S.C. § 144 and § 455(b)(1). JusticeScalia, speaking for the Court, explained that § 455(b)(1) “entirely duplicated the grounds of recusal set forth in§ 144 (‘bias or prejudice’) but (1) made them applicable to all justices, judges, and magistrates (and not justdistrict judges), and (2) placed the obligation to identify the existence of those grounds on the judge himself,rather than requiring recusal only in response to a party affidavit.”
Liteky 
, 510 U.S at 548.
 
Case 8:12-cv-01092-DMG-JC Document 20 Filed 08/13/12 Page 3 of 4 Page ID #:229

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